{"id":3589,"date":"2023-01-19T11:46:04","date_gmt":"2023-01-19T10:46:04","guid":{"rendered":"https:\/\/blogs.ifla.org\/lpa\/?p=3589"},"modified":"2023-01-20T09:46:45","modified_gmt":"2023-01-20T08:46:45","slug":"copyright-week-fair-use-protection-in-recent-us-supreme-court-cases","status":"publish","type":"post","link":"https:\/\/blogs.ifla.org\/lpa\/2023\/01\/19\/copyright-week-fair-use-protection-in-recent-us-supreme-court-cases\/","title":{"rendered":"Copyright Week: Fair Use protection in recent US Supreme Court cases"},"content":{"rendered":"

This week is the Electronic Frontier Foundation (EFF)’s Copyright Week.<\/a>\u00a0Watch IFLA’s Policy and Advocacy blog<\/a>\u00a0for posts on the rights libraries and their users have under copyright right law. Recently we shared a post on Monday’s theme, the Public Domain.\u00a0<\/a><\/em>Today: Fair Use.<\/em><\/p>\n

Fair use triumphs over proprietarianism. Consumers benefit from competition and advances in technology \u2013 as affirmed and supported by two recent Supreme Court cases from 2021.<\/p>\n

In a 6-2 decision the U.S. Supreme Court rendered a significant confirmation that fair use is a friend of innovation, interoperability and good old-fashioned American creativity and ingenuity. While the decision in Oracle America, Inc. v. Google LLC<\/em>, 141 S.Ct. 1183 (2021), disappointed some commentators and practitioners as it assumed \u201cfor argument\u2019s sake\u201d that Oracle\u2019s Java SE Program was copyrightable; leaving no further guidance on the boundaries copyright protection for works of function such as a computer program, it was a victory for the continued application of fair use in the technology sector.<\/p>\n

The decision follows other fair use and computer program decisions from the appellate courts such as Sony Computer Entertainment, Inc. v. Connectix Corp.<\/em>, 203 F.3d 596 (9th Cir. 2000), cert. denied 531 U.S. 871, that held reverse engineering requiring reproduction of the protected as well as unprotected elements of Sony\u2019s gaming platform (PlayStation) a fair use. Connectix wanted to develop a platform that would allow users to play Sony games on a Macintosh. As the Ninth Circuit stated \u201cbecause the Virtual Game Station is transformative and does not merely supplant the PlayStation console… Sony understandably seeks control over the market for devices that play games Sony produces or licenses. The copyright law, however, does not confer such a monopoly.\u201d Id. at 607.\u00a0 The Sony <\/em>decision followed the logic of a previous case involving another gaming giant, Sega Enterprise Ltd. and its Genesis console,\u00a0Sega Enterprises Ltd. v. Accolade, Inc.,<\/em> 977 F.2d 1510 (9th Cir.1992).\u00a0 There the disassembly of the program that included reproducing protected as well as unprotected elements so that Accolade, Inc. could write its own code and create games that would be playable on Sony\u2019s console was also deemed a fair use.<\/p>\n

In the Oracle <\/em>case the stakes were higher than the video game market, rather the development of an alternative cell phone platform.\u00a0 \u00a0Like Accolade, Google wrote millions lines of new code, while it reproduced and incorporated 11,500 lines of code from the Sun Java SE Program.\u00a0 The Java code consisted of 2.86 lines of which 11,500 represented about 0.4%.\u00a0 Oracle claimed infringement. Google claimed fair use. The Court reiterated the purpose of U.S. copyright is to help society unleash its creative potential.\u00a0 That purpose is balanced against the exclusive rights the copyright law offers. The court acknowledged that \u201cthe exclusive rights <\/strong>it awards can sometimes stand in the way <\/em><\/strong>of others exercising their own creative powers.\u201d Oracle America, Inc. v. Google LLC<\/em>, 141 S.Ct. 1183, 1195 (2021).\u00a0 This review required \u201cjudicial balancing\u201d and considered \u201csignificant changes in technology.\u201d The use of the Java code was an efficient way to innovate a new product and this \u201cuse was consistent with that creative \u2018progress\u2019 that is the basic constitutional objective of copyright <\/em><\/strong>itself.\u201d Id.\u00a0 Programmers would not need to learn an entirely new programming language as \u201cprogrammers had already learned to work with the Sun Java API\u2019s system, and it would have been difficult, perhaps prohibitively so, to attract programmers to build its Android smartphone system without them.\u201d Id. at 1205.\u00a0 The Court found this purpose to be an \u201cinherently transformative role <\/em><\/strong>that the reimplementation played <\/em><\/strong>in the new Android system.\u201d Id. at 1204. Further, Google took \u201conly what was needed.\u201d Id. at 1209.\u00a0 The court also discussed how Sun\u2019s mobile market was declining. This inability to compete in Android\u2019s market \u201cand the risk of creativity-related harms to the public<\/em><\/strong> \u2026 convince that this fourth factor\u2026 also weighs in favor of fair use.\u201d Id. at 1208. Overall elements of all four fair use factors (purpose and character of use, nature of the work used, the amount taken and the market) favored fair use.<\/p>\n

These cases represent support and encouragement of interoperative products and services, marketplace innovation and a recognition that the purpose of copyright is not only to reward copyright holders but to benefit society through new tools and technologies. Computer programs – while not unprotected by copyright – are works of function, a category in which fair use is more generously applied. Libraries produce works of function all the time, such as indexes, outline, bibliographies, lexicons, thesauri, finding aids, abstracts and reviews.\u00a0Altogether, these open new avenues to work with and preserve content that people and institutions \u2013 including libraries \u2013 can further explore.<\/p>\n

 <\/p>\n

Written by:<\/p>\n

Professor Tomas A. Lipinski, J.D., LL.M., M.L.I.S., Ph.D.
\nSchool of Information Studies, University of Wisconsin–Milwaukee
\ntlipinsk@uwm.edu<\/p>\n","protected":false},"excerpt":{"rendered":"

This week is the Electronic Frontier Foundation (EFF)’s Copyright Week.\u00a0Watch IFLA’s Policy and Advocacy blog\u00a0for posts on the rights libraries and their users have under copyright right law. Recently we shared a post on Monday’s theme, the Public Domain.\u00a0Today: Fair Use. Fair use triumphs over proprietarianism. Consumers benefit from competition and advances in technology \u2013 […]<\/p>\n","protected":false},"author":1051,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[11,36381,7265],"class_list":["post-3589","post","type-post","status-publish","format-standard","hentry","category-general","tag-copyright","tag-fair-deal","tag-fair-use"],"_links":{"self":[{"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/posts\/3589","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/users\/1051"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/comments?post=3589"}],"version-history":[{"count":4,"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/posts\/3589\/revisions"}],"predecessor-version":[{"id":3594,"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/posts\/3589\/revisions\/3594"}],"wp:attachment":[{"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/media?parent=3589"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/categories?post=3589"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.ifla.org\/lpa\/wp-json\/wp\/v2\/tags?post=3589"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}